Over the last couple of hours, I have watched as Democrats celebrated the death of Antonin Scalia, salivating over the opportunity for President Obama to replace a strict Constitutionalist with a strict ideological progressive. Conservatives are rightfully frightened. Today, the United States of America has lost one of the few patriots that has protected this nation from unconstitutional governance. However, I have also heard many conservatives discussing the current predicament without the full benefit of the facts.
Fact number one: There is nothing in the United States Constitution that prevents President Obama from replacing Jurist Antonin Scalia. Article 2, Clause 2, states,
“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments”. W
Therefore, there is no Constitutional argument against the President nominating a candidate to replace a deceased Jurist during his last year in office. The idea that a “lame duck President” cannot appoint Jurists is simply false and one should note that as of 2014, President Obama has been a “lame duck President” and he has made several nominations to the Courts.
Fact number two: Everyone is talking about the Thurman Rule. The Thurman Rule is intended to prevent appointments in the latter half of a Presidents’ last year. This would be during the General Election. The Thurman Rule was never intended to prevent appointments during the primary season. The Thurman Rule is also a parliamentary rule and not a Constitutional law. Do not depend on this Thurman Rule to prevent the President from nominating whomever he wants to the court.
President Obama will nominate someone of his choosing to the Supreme Court.
Fact number three: Upon nominating a candidate of his choosing to the Supreme Court, the matter goes before the Senate Judiciary Committee. The members of the Senate Judiciary Committee are: Chairman Chuck Grassley (R), Senator Patrick Leahy (D), Senator Orrin Hatch (R), Senator Dianne Feinstein (D), Senate Jeff Sessions (R), Senator Charles Schumer (D), Senate Lyndsey Graham (R), Senator Dick Durbin (D), Senate John Cornyn (R), Senator Sheldon Whitehouse (D), Senator Michael Lee (R), Senator Amy Klobuchar (D), Senator Ted Cruz (R), Senator Al Franken (D), Senator Jeff Flake (R), Senator Christopher A. Coons (D), Senator David Vitter (R), Senator Richard Blumenthal (D), Senator David Perdue (R), and Senator Thom Tillis (R).
Take a look at these names and decide for yourself the likelihood that the Presidents’ nominee doesn’t make it out of Committee. I look at these names and the only Senators I imagine trying to kill a nomination in committee would be Senator Lee, Senator Cruz, and Senator Sessions. The nominee will likely come out of the Senate Judiciary Committee.
Face number four: After the nominee comes out of the Senate Judiciary Committee, the nominee will be voted on by the entire Senate, requiring only a 50/50 split, with Vice President Biden casting the deciding vote, to ensure that President Obama gets his nominee appointed to the Supreme Court.
Many conservatives are clambering that a Republican Senate would never lose four votes, and thus creating a split vote, to put a progressive Jurist on The Bench. Please, I encourage your to look at the last two Supreme Court Nominee’s approved by the United States Senate.
In the nomination of Jurist Sonia Sotomayor, 9 Republican Senators voted to confirm her nomination. Republicans could gain five of those yea votes for Sotomayor back in opposition and still President Obama’s nominee would be confirmed.
In the nomination of Jurist Elena Kagan, 7 Republicans voted to confirm her to The Supreme Court. It is important to note that 5 other Senators either were no longer present in The Senate or simply did not vote.
While it is possible that the Senate could try to avoid nominating President Obama’s candidate for The Bench, it is extremely unlikely. Do not get your hopes up, do not anticipate a miracle merely because the consequences of this tragedy are so damaging and threatening to the future of the Republic.